The new form electronic bill is “bound to save time and costs” and soon “people will be amazed that we had put up with the old paper-based bill for so long”, Lord Justice Jackson predicted this week as he reflected on his reforms ahead of his retirement yesterday.
Speaking to the Cambridge law faculty on Monday, two days before he turned 70, Sir Rupert said that many the causes of excessive costs have been eliminated but litigation was still too expensive.
The speech was entitled ‘Was it all worth it?’. His conclusion? “That is for listeners and readers to judge. But it is submitted that the answer is yes.” This was despite the criticism he faced over the past decade, to which he referred several times.
He commented on each of his key reforms. On the new bill, he said: “The current form bill of costs is based on a Victorian account book and makes no use of modern technology. The proposal for a new form electronic bill of costs have been long – too long – in gestation, but they will be implemented this year.
“Practitioners will take time to adjust; there may be some teething troubles; there may be irate articles in the legal journals (with the usual friendly comments posted by readers). In the long term, however, the new form electronic bill of costs is bound to save time and costs. I predict that in three years from now people will be amazed that we had put up with the old paper-based bill for so long.”
On summary assessments, Jackson LJ said the new form N260, requiring parties to provide proper details of work done on documents, “is helpful for opposing parties and for any judge summarily assessing costs”.
However, his call for the guideline hourly rates to be reset has so far come to nothing. “That is unfortunate, but not the end of the world. Courts increasingly look at the substance of the work done and proportionality in determining the level of recoverable costs.”
Sir Rupert inferred that both provisional and detailed assessment were working well and saving costs “from the lack of complaint. If any reform causes problems, practitioners are swift to publicise their concerns”.
He argued that, over the past two years, there has been a “growing acceptance” that costs management and limiting recoverable costs a proportionate sum were “both necessary and beneficial”.
Jackson LJ also recognised that the profession was becoming “impatient” for guidance on the proportionality test from the Court of Appeal. “The remedy lies in their own hands. The Court of Appeal can only decide the cases which come before it.”
Sir Rupert also identified the control of incurred costs incurred as an area still needing reform.
In his supplemental report last year, Sir Rupert put forward a solution, but this required primary legislation. “Once that legislation is in place, the rule committee can draw up a grid of acceptable pre-action/pre-case and costs management conference costs for different categories of case, coupled with a procedure for pre-action applications for permission to exceed the specified limits.”
Meanwhile, the minutes of the Civil Procedure Rule Committee’s February meeting – released this week – record that Mr Justice Birss told its members that a work was ongoing to make certain that the new bill costs, Precedent H and Precedent H Guidance “are consistent and accurate and that N260 the summary costs statement follows the same format”.
The content of Precedent H itself is not changing. Mr Justice Coulson, who was chairing the meeting, added that in his experience, having settled down, Precedent H and R were working “very well”.